Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-10-15
100 Doses One Dollar
COURT OF APPEALS.
Synopsis of Opinions Rendered at Tyler
Sitting

Synopsis of Opinions Rendered at Tyls1
Sitting
Correspondence of the Gazette.
| TYLER, TEX Oct. l3.-John Fisher vs
the State; appeal from Maverick. In thIt
notice Of appeal was given in the court
below. The Assistant Attorney General
moved to dismiss on this ground. Held
| This is a positive requirement of the law
and must be observed. Dismissed.
White, P. J.
Henry S. Cobb vs.. John S. Hillyer; sp-
peal from Smith. Hillyer, bought land
from Cobb, who gave him q guarantee
deed. The Tatum heirs sued hillyer and
recovered the land. This suit was
brought by Hillyer TO recover from Cobb
the money paid on the land. amounting
to $2I0. Held: The judgment of the
lower court below allowing Hnlyer to re-
cover from COBB the amount paid on said
land, according to long line OF decis-
ions is correct. Affirmed. Wilson, j.
Sam Murc0ison vs.. the State; appeal
from NacogdOches. This is an appeal
from conviction for drunkenness IN q
public place, wit, grand jury room.
Appellant claims that grand Jury room
is not public place, but, on the contra
ry, is q private place. and seeks re-
verssl of the judgment on this ground.
Held: This pOsiJlon is not well taken, o
grand jury room being, in the eye of the
law, public place. Affirmed. Wilson, =.
Eli Mcconnell vs.. the State; appeal
from Parker. This appeal is from con-
victit Of manslaughter Appellant hav-
ing previously been acquitted Of murder
charged in Inc Indictment, moved the
court in limine to strike from the in
dictment the charges Of malice and muir
der. This motion the court oVerruled,
but in the charge to the jury instructed
them that they could not ind him guilty
of muir Ter either in the first or second
degree, but must, If they found him guilty
at all, of g lesser degree. Held: Not error.
1t is provided by the Statute that murder
includes sill the lesser degrees OF culps-
bic homicide. Grim. Pro. Art. IA.
Aft med. White, P. j.
W. E. Ivey vs.. Higgins & Rowland;
appeal from Smith. The property III CON
troversy was six bales of cotton, mort
gagged and described as follows: 'Six
bales of good merchantable cotton, being
the first SIX bales of cotton planted and
to be plante this year, 1886, On my farm
in Smith county or on any other land
NAV cultivate this year, 1886" Held: A
sufffc ent description. Hurt,
George Bailey vs.. the State; appeal
from Wharton. IN the court below de-
PENDANT asked for continuance on the
ground that two wi nesses were absent
who would sWesr that one Dan Ward ad-
mitted IL their presence that he did the
killing, and also that Bailey, the defend
an, had nothing to do with the killing.
This motion the court overruled, and this
ruling is assigned as error. Held: No
erro. II WAS not shown when these con-
LESSONS were made and they may not
have been admissible. One witness
sWears positively that Bailey, the defend
ant, did tie shooting. Another that Ward
was at another place when the killing &C.
Cured.
The written statements voluntarily made
before the examining court by appellant
were stricken out on his own motion.
The state then, over objections Of de-
PENDANT introduced oral testimony to
prove what defendant said on examining
trial Held: Not error. Where six
Jurors have been sworn to try cause,
and the court instructs them to retire.
while other tslesmen are summoned, ana
one of them remains in the courtroom,
and it is not shown that any one con-
versed with him, 1t is not reversible.
Affirmed. Hurt, j.
Charles Darnell VS.. the State; appeal
from Wood. In 1883 defendant was in
dicted in the District court of Wood
county for the crime of murder. In the
same year he was tried and his punish
ment assessed at death. On the 14th day
of November, 1883, this judgment WAS
affirmed by this court. Oarnell VS.
State 10 c. a. 70 After this affirmsnce
and before sentence defendant was tried
and convicted Of lunacy and sent to Ter
rell to the asylum. After six or seven
months the asylum authorities dis
charged him and pronounced him
sane, and turned him over
to the Sheriff of Wood county. At the
November term of the District court Of
Wood county, an affidavit was fled by
credible person informing said court that
said Darnell had become sane. The
court impanelled jury to try said issue
and said Jury returned verdict nndIng
Darnell sane, whereupon said court ad-
Judged him TO be sane. From this last
verdict this appeal is prosecuted, and the
Assistant Attorney General moved to dis
miss the appeal. Held: The right of
appeal is given defendant in any GRIM
insl action upon conviction. G. G. P.
S37 1t has been repeatedly he'd in this
stste thst an appeal can only be prescott
ed from final judgment of conviction
rendered and entered against defendant.
The conviction is an Indispensable re-
quisite to the right Of appeal, and the
record on appeal to this court must show
such final judgment or this court can not
entertain jurisdiction. Dismissed. WILL
son, j.
Tyler Lumber Co. vs.. W Rosehheld;
appeal from Smith. W.P& J. A. Mar
tin being indebted to Appellee Rosenfield,
contracted In writing, to deliver to jsaid
Rosen field on the cars at Kilgore, loo, 900
feet cfslumber OF specified quality, at spe-
Gifted times and at specified prices, the
payments to.be credited on said indebted